' The facts of the case briefly stated are that the applicant is the owner of land bearing survey No, 349 situated in Deh Thano Tappo, Malir Taluka, Karachi and is in possession of the same for the last more than 20 years, he having purchased the same by registered document in the year 1934 vide Exh. 5-B.
2. The applicant on the aforementioned plot constructed certain shops which are described by him as of temporary nature, whereupon he was served with the notice dated 24th August, 1974 by the respondents on the plea that he was constructing pacca shops at mile 11/6 to 11/7 on National Highway at a distance of about 20 feet only from the edge of the road which according to the authorities was a violation of the Highway Ordinance, 1959 (as amended). He was accordingly called upon to stop the construction at once and remove the unauthorised construction made so far. He was further warned that in case of his failure to do so, action would be taken as per Government rules through police force. The applicant aggrieved by the aforesaid notice and the direction given therein filed Suit No, 2225/1974, which was heard by the learned VIth Senior Civil Judge, Karachi. The learned trial Court after framing a number of issues and hearing the parties dismissed the suit with costs.
3. The applicant preferred Civil Appeal No, 315/1978, against the aforesaid judgment, but the same was dismissed by the learned Vth Additional District Judge, Karachi by judgment and decree passed on 7th August, 1980.
4. The applicant has now challenged the above-mentioned judgment and decree by filing this Revision Application.
5. The learned counsel for the applicant submitted that under section 16 of the Highway Ordinance the concerned authorities have to determine the building line and as this was not done, the provisions of section 8 of Sind Ordinance were not attracted.
' In order to appreciate the above point raised by the learned counsel we may first reproduce herein below sections 8 and 16 of the above Ordinance upon which reliance was placed :- Section 8.- "8. Restrictions on ribbon development on certain highways.-(1) As respects all highways which on or after the date of the coming into operation of this Ordinance are maintained by the Provincial Public Works Department or are provincial property maintained by local bodies, the following restrictions shall apply, that is to say, it shall not be lawful without the consent of the Highway Authority :-
(a) to construct or layout any means of access to or from the Highway ?
(b) to erect any building upon land within two hundred and twenty feet from the middle of the highway.
(2) Notes.-(Not reproduced as not relevant for this case).
Section 16: "16. Determination of building line.-(1) In respect of any such highway specified in section 8 or for which the provisions contained in section 8 have been adopted under section 9, the Highway Authority may determine a building line, along one or both sides of such highway, after enquiry in the manner hereinafter described."
(2)
(3)
(4) Note. -(Not reproduced as not relevant for purposes of this case).
(5)
(6)
A reading of the above-quoted provisions of law, would show that even in cases where building line is not determined as contemplated, in A section 16 of the Act the restrictions imposed on raising of constructions within the specified distance from the highway would be applicable by force of the prohibitions laid down in section 8 itself.
6. The learned counsel for the applicant argued that the Highway Department under the relevant law, in the absence of any authority to that effect, had no jurisdiction to remove and demolish the alleged encroachment. He referred to the notice dated 24th August, 1974 issued by the Executive Engineer, Highway Department, whereby he called upon the applicant -to stop the construction at once and remove the unauthorised construction made so far, else action will be taken as per Government rules through police force."
' A copy of the above notice was endorsed, amongst others, to the Station House Officer. Malir Police Station with the direction that immediate action be taken to get the said construction removed by giving police force to Mr. Muhammad Amin, Overseer of the Department who was deputed to contact him. According to the learned counsel under section 25 the Highway Ordinance, 1959 the Officers of the said Department had no jurisdiction to issue any such order or direction for demolition of any construction made by an owner on his own land. He further submitted that the construction. Made by the applicant was on his own land and that the said constructions could not be called or termed as encroachment :within the meaning of section 6 of the West Pakistan Highway Ordinance, 1959 (Ordinance No, XXXII of 1959). It would be relevant, therefore, to refer to the provision of section 6 which provides as follows :- "6. Encroachments.-(1) A Highway Authority May, with due regard to the safety and convenience of traffic on the highway and subject to such conditions as it may impose, permit any person' on payment of such fees as it may fix.
(a) to place a movable encroachment on any highway in. 'front of any building owned by him as ground level ;
(b) to make a movable structure overhanging a highway
(c) to deposit or cause to be deposited building materials, goods for sale or other articles on any highway ; and
(d) to set up a stall or scaffolding on any highway.
(2) Any person who does any of the acts enumerated in the last preceding subsection or sets up any fence, hedge or post on highway without the written permission of the Highway Authority shall be published with fine which may extend to fifty rupees, and the Highway Authority may, after giving reasonable notice to the offender requiring him to remove the offending structure, fence, hedge, post, deposit, goods, articles, stall or scaffolding ; and may recover the cost as hereinafter provided."
(3) (Not reproduced as not relevant).
7. A bare reading of provisions of section 6 would however show that it relates to encroachments enumerated in subsection (1) which are made on the highway. Admittedly in this case no encroachments have been made on the highway, which is defined in sub-clause (c) of section 2
(ii) of the above-mentioned Ordinance.
8. Mr. M. I. Memon the learned Additional Advocate-General, in reply however relied upon the provisions of section 6 to justify the notice issued by the Department, but we have already noted above that the said section has no application to the constructions made by the applicant on his own land. As regards section 8, no doubt it prohibits raising of any construction within the area prescribed therein but the learned Additional Advocate-General was unable to point out any provision of law under which the departmental authorities could proceed to demolish any construction already made.
9. The upshot of the above discussion is that the Highway authorities have not been able to show that they have any lawful authority to demolish the construction already made by the applicant on his own land. Accordingly the notice dated 24th August, 1974, is declared to have been issued without any jurisdiction and that respondents are restrained from acting upon the same.
It is, however, clarified that the above findings shall not be construed as debarring the authorities to take appropriate action against the applicant or for demolition of the constructions (if found offending) by taking appropriate proceedings under the law.
10. The impugned orders are thus set aside subject to the observations made as above.
' The parties shall bear their own costs.